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ELCDismissedNot stated in the judgment· [2016] KEELC 635 (KLR)

Samuel Kipngeno Koech v Agnes Wambui Gitonga [2016] KEELC 635 (KLR)

Environment and Land Court
29 July 2016
MSMunyao Sila
1,761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that adverse possession claims must attach a certified title extract and cannot succeed over unregistered Settlement Fund Trustees land.

What this practically means

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Executive summary

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The applicant commenced an Originating Summons on 5th February 2015 under Order 37 Rules 1 and 7 of the Civil Procedure Rules and Sections 37 and 38 of the Limitation of Actions Act, claiming Sondu River Settlement Scheme Plot No. 552/5 (7.5 acres) by adverse possession, alleging he purchased it from the respondent on 10th April 2002 for Kshs. 375,000 and had occupied it openly for over 12 years. He annexed a sale agreement and a demand letter from the Ministry of Lands, but no certified extract of the title, contrary to Order 37 Rule 7(2). The court gave repeated directions for compliance; none was met, and on 24th February 2016 the Originating Summons was struck out with costs for incompetence. The applicant then moved by Motion dated 5th April 2016 to set aside the striking-out, explaining that a further affidavit annexing a letter from the District Land Adjudication Officer, Nakuru (confirming the plot was allocated to the respondent and fully paid for but unregistered) failed to reach the court file through registry error. The respondent opposed, arguing the letter is not a title deed. Munyao Sila J held that Order 37 Rule 7(2) is mandatory: adverse possession lies only over registered land, since Section 38(1) of the Limitation of Actions Act targets registered titles, and unregistered land falls under the Land Adjudication Act. The extract of title is also essential for computing time against entities such as the Government, including Settlement Fund Trustees land, which is Government land per Gitu vs Ndungu & 2 Others (2001) KLR 149. The adjudication officer's letter was held not to be an extract of title and too imprecise to compute time. The application was dismissed with costs and the suit remains struck out.

Key legal issues

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01

Mandatory nature of the certified extract of title under Order 37 Rule 7(2)

Holding

An adverse possession Originating Summons must be supported by an affidavit annexing a certified extract of the title; non-compliance renders the suit incompetent.

Reasoning

The court reasoned that adverse possession is directed at acquiring specific registered land, so the claimant must identify the exact title. The extract also reveals the history of proprietorship, which is necessary to compute limitation time and to identify entities against whom time cannot run, such as the Government under Section 41 of the Limitation of Actions Act. The rule was therefore treated as mandatory, not directory.

p. 2
02

Whether unregistered or Settlement Fund Trustees land can support adverse possession

Holding

Land not yet registered, or land under the Settlement Fund Trustees, cannot sustain a claim for adverse possession.

Reasoning

Section 38(1) of the Limitation of Actions Act applies only to land registered under the repealed registration statutes. Where land is unregistered, rights must be ascertained through adjudication and there is nobody holding title to sue. Settlement Fund Trustees land is Government land per Gitu vs Ndungu, and time does not run against the SFT while it holds a charge.

p. 3
03

Whether the adjudication officer's letter could substitute the extract of title and justify reinstatement

Holding

No - the letter is not an extract of title, does not show when the SFT ceased to have interest, and cannot be used to compute limitation time.

Reasoning

The court held the letter confirmed the plot was allocated to the respondent and fully paid for but not registered. Even assuming SFT land could have title, the letter does not state the SFT has no further interest, nor when payment was completed, so the period of possession cannot be computed from it. Reinstating the suit would therefore be futile.

p. 3

Legal principles established

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  • The supporting affidavit in an adverse possession suit must be accompanied by a certified extract of the title; the requirement in Order 37 Rule 7(2) is mandatory.
  • Unregistered land cannot be the subject of an adverse possession claim; such claims must await adjudication of rights under the Land Adjudication Act.
  • Land under the Settlement Fund Trustees is Government land and no adverse possession can be claimed over it while the SFT interest subsists.
  • A letter from a District Land Adjudication Officer is not an extract of title and does not state when the SFT's interest ceased, so time cannot be computed from it.

Court orders

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  1. 1.The application dated 5th April 2016 is dismissed with costs
  2. 2.The suit remains as struck out with costs
  3. 3.It is so ordered

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rules 1 and 7 (particularly Rule 7(2))
  • Limitation of Actions Act, Cap 22Sections 37, 38(1) and 41
  • Land Adjudication Act, Cap 284General
  • Government Lands Act (Cap. 280)Cited in Section 37
  • Registration of Titles Act (Cap. 281)Cited in Section 37
  • Land Titles Act (Cap. 282)Cited in Section 37
  • Registered Land Act (Cap. 300)Cited in Section 37; also section 120(8) in Section 41
  • Land Registration Act, 2012Repealing the former registration statutes
  • Mining Act (Cap. 306)Referenced in Section 41
  • Mineral Oil Act (Cap. 307)Referenced in Section 41
  • Water Act (Cap. 372)Referenced in Section 41

Cases cited (1)

  • Gitu vs Ndungu & 2 Others
    (2001) KLR 149
Jurisdiction invoked
Order 37 Rules 1 and 7 of the Civil Procedure Rules as read with Sections 37 and 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Kipngeno Koech v Agnes Wambui Gitonga [2016] KEELC 635 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/635/eng@2016-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.